Monday, December 19, 2005

Stop, In The Name Of Law

(Warning, this is damn long)

In the novel, 1984, the main character, Winston, is assigned to the job of changing the past-- more specifically, he edits old newspapers so they support the government's new policies. For instance, when the government decides to decrease rations, Winston changes the past newspaper to make it seem as if the government has actually increased rations.

Oh, how the Bush Administration wishes it could do the same thing!

Unfortunately, while they try mightily to change the past, current recordkeeping techniques hold them back.

For Instance:

Bush insists that domestic spying, which he personally authorized, is legal.

Unfortunately...

A 1978 law, the Foreign Intelligence Surveillance Act, makes it illegal to spy on U.S. citizens in the United States without court approval.

Bush didn't get court approval.

This 1978 law, of course, in addition to the 4th amendment, makes pretty much clear that what Bush authorized was illegal.

However:

“I take Bush at his word that the order was critical to saving lives and consistent with U.S. law and the Constitution.”- Sen. John McCain

And MSNBC reports:

The president, as commander-in-chief, has certain authorities under the constitution, Attorney General Alberto Gonzales said, and those were expanded by Congress to include electronic surveillance a few days after the attacks on Sept. 11, 2001.

The president’s use of that authority is “consistent with law in my judgment,” he said.
However, Title 50, U.S. Code 1702 of our great giant law book says:

The authority granted to the President... does not include the authority to regulate or prohibit, directly or indirectly— (1) any postal, telegraphic, telephonicor other personal communication, which does not involve a transfer of anything of value;
Of course... that's really hard to understand.

And Title 18, U.S. Code 2516 reads:

The Attorney General, Deputy Attorney General, Associate Attorney General,[1] or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of....
That's a mouthful. But basically, it comes down to... "If you wanna spy, you have to present evidence to a judge first!"

Even the exceptions require an application to a judge within 48 hours of the wiretap.

Title 50, U.S. Code 1804 says:
"Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge"
SO where, oh where does our laws state that the President can spy on whomever he likes?

My bet is that ol' Alberto was hinging his gameplan on this, Title 50, code 1805:

(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.
This is why no senators actually read the Patriot Act when they approved it. Jesus, the Patriot Act is longer than the Bible!

Basically, I can't find anything that would authorize the President, or Alberto Gonzales, or anyone to legally spy on a U.S. citizen without the approval of a judge. If someone knows otherwise, please let me know. I'm no law scholar. Just a guy with the internet and The University of Cornell's excellent U.S. law database.

In fact, I invite everyone to search dilligently for this. Find where it allows Bush to spy on us without letting anyone know. Post the paragraph and where it appears in the comments below. And if you can't find anything... well, what penalty should Bush get for violating the Constitution and U.S. Law?

Might want to ask Andrew Johnson and Bill Clinton.

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Plus: Can Someone Explain Why We Released Saddam's Buddies From Prison?

and

Eye-opening NYTimes Piece On Teen Webcam Pornography (free regist. required)

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3 comments:

barbie said...

hey adam
cheer up. at least you're not living in the south, aka the land of nod. and thanks to the strike, the rest of the country now has something other than war updates to watch on cnn. hang tough. barbie2138

Matt said...

The legalese is almost impossible to penetrate but one gray area is as follows:

50USC1802(a) states: "(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court
order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title"

And 50USC1801(a) includes the following definition of a foreign power as "(2) a faction of a foreign nation or nations, not substantially composed of United States persons"

Now does a group of 4 US citizens communicating with Al Qaida (an organization consisting of hundreds or thousands of foreign nationals) therefore count as a foreign power?

I am not a lawyer but this is certainly not as black and white as some are making out. I still think it's incredibly wrong though!

Anonymous said...

'"America was founded not as a democracy but as a Constitutional Republic"

We pledge allegiance to the Republic for which our flag stands,not to a democracy.The constitution requires a 'republican form of government' for all states,but does not mention democracy,and niether does the Declaration of Independence or the Bill of Rights.
The Constitution is a binding contract,specifically enumerating limited powers which the federal government can legally excersise, and prohibiting the federal government from exercising any powers not granted in the contract.It denies federal officials the power to do whatever they claim to be necessary for the general welfare.
Federal action not clearly authorized by the constitution is illegal even if approved by an overwhelming majority of the people,because all the elastic powers of government are left within the states.

A constitution is not the act of a government,but of a people constituting a government: and government without constituttion is power without a right.All power exercised over a nation,must have some beginning.It must be either delegated, or assumed.There are not other sources,all delegated power is trust,and all assumed power is usurpation.Time does not alter the nature and quality of either." Thomas Payne,1777
History records that as Benjamin Franklin left the State House in Philadelphia on the closing day of the Constitutional Convention,a woman asked him what kind of government the statesmen had given America.Franklin replied;"A republic, Madame,if you can keep it."
Franklin saw through the mists of time to the day when Americans might trade their freedom in a Constitutional republic for the promise of government - guaranteed equality abd security in a democracy - and beyond that,to the day when democracy inevitably degenerates into dictatorship,guaranteeing nothing but poverty and serfdom for the people it robs and rules.
When we assumed the Soldier,we did not lay aside the citizen."- General George Washington,New York Legislature,1775

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